Page:Harvard Law Review Volume 4.djvu/92

76 7 6 HAR YARD LAW RE VIE W. Let us consider first the ordinary case where real estate is trans- ferred without any reservation. Every layman and many of the bar, not familiar with the course of this litigation, have asserted that the damages belong to the person who owned at the time the roads were built. His grantee purchased the property at a re- duced price from the very fact of the road being there, and it has been argued with much apparent plausibility by the railroads that the seller is entitled to the damages. There is a great deal of abstract justice in this argument, but the law has been interpreted otherwise, — Glover v. Manhattan,^ where Ingraham, J., says: property, but he is entitled to be protected against an unauthorized appropriation, whether it was acquired by him before the defend- ants appropriated it, or the day before the commencement of the action. " The writer has always thought a different rule would have been much more in harmony with justice. Yet the decision in New York State could not have been otherwise without unsettling the law of realty, and doing much more injury by making poor law to meet an exceptional hardship. In many States these roads would have been held to have committed a permanent trespass, and the cause of action to have accrued when they were built. But in New York the whole tendency is to regard such trespasses as continuing, every day constituting a new trespass and a new cause of action. ^ It is partly on this ground that the defence of laches has been so continually overruled by the courts in the equity action. In a suit at law a property owner cannot recover the permanent damage to his property. He can only recover the damages that have accrued for the six years of trespasses prior to instituting the action, provided he has owned the property for six years. ^ The practical way in which property owners have obtained full dam- ages past, present, and future has been by maintaining an action in equity to enjoin the operating of the road. Another reason why a court of equity will take jurisdiction is to avoid a multi- plicity of suits. The courts decree an injunction and award the property owner as incidental relief .i^ rental damage that he has ^ 51 Superior Ct. i. » Uline V. N. Y. Cent. R. R. Co., loi N. Y. 98 ; Pond v. Met. Elev. Ry. Co.. n 2 N. Y. 186. • Pond V, Metropolitan, supra.
 * ' It can make no difference at what time he became the owner of the